The Corner

Re: the Politicians’ Veto

Mike: The “standing” aspect of the Proposition 8 case doesn’t just impact the fate of passed state initiatives. I don’t see why the executive branch at all levels of government–including the federal–can’t now simply refuse to defend any law created at any time for any reason in the face of a constitutional (perhaps brought by political allies) or other legal challenge. This is a really consequential thing.

What should have happened in the Proposition 8 case was for Gov. Brown or AG Harris to recuse themselves and appoint a representative for the state in defending its constitution. They could even have filed amicus briefs as individuals opposing Prop 8. But the law, voted by the people, should have been defended by someone or some entity, and the courts should have recognized the standing. In fact, in a sense that is what happened. The California Supreme Court explicitly approved of the organization defending Prop 8 after the 9th Circuit Court of Appeals referred the case to it to resolve that very issue. This state imprimatur was disregarded by the Supremes.

We are fast becoming a country governed by the rule of men and women, not by law. As I wrote here last February, allowing state officials to veto laws–not just bills–strikes at the heart of liberty We are far less free today because we are no longer a society that sees principle as paramount. All that matters, particularly on the left, is gaining the desired result in the issue at hand. 

Wesley J. Smith — Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

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